Lafavor v Nelson 2019 BCSC 1903 recently reviewed the law relating to “want of prosecution” of a case (inordinate delay in its prosecution).
The plaintiff had not taken any steps in the legal proceedings for approximately 4 years, and the defendant brought on an application to dismiss the plaintiff’s claim for want of prosecution.
Want of Prosecution
Rule 22-7(7) of the Supreme Court rules states that if it appears to the court that there is a want of prosecution in a proceeding, the court may order that the proceeding be dismissed.
There are a number of Court of Appeal decision summarizing the law relating to want of prosecution, namely:
1) 0690860 Manitoba Ltd. v Country West Construction Ltd 2009 BCCA 535 at paragraph 27;
2) Tundra Helicopters Ltd v . Allison Gas Turbine 2002 BCCA 145
3) Busse v . Robinson Morelli 1999 BCCA 313;
4) Irving v . Irving (1982) 38 BCLR 318
all of which outline the following criteria for the court to consider on such an application:
1) The length of the delay and whether it was inordinate;
2) any reasons for the delay, either offered in evidence, or inferred from the evidence, including whether delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniousity, illness or some other relevant cause; the ultimate consideration being whether to delay is excusable in the circumstances;
3) whether the delay has caused serious prejudice to the defendant in presenting the defence, and if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial, after its reactivation by the plaintiff; and;
4) whether, on balance, justice requires dismissal of the action.
The fourth question encompasses the other three and is the most important and decisive question.
In the Irving decision, at 328, the court states” the demonstration of inordinate delay, inexcusable delay, and serious prejudice does not lead necessarily to dismissal— is still for the courts to decide whether or not, on balance, justice demands that the action should be dismissed. The overriding principle that essential justice must be done.
In Tundra Helicopters the court stated at paragraph 37-it is no light matter to dismiss an action for want of prosecution. As such dismissal is a “Draconian order” and should not in any event be exercised without giving the plaintiff an opportunity to remedy his or her default, unless the court is satisfied other that the default has been intentional or contumelious
Balanced against the draconian nature of an order to dismiss an action for want of prosecution is the objective of the rules to secure the just, speedy and inexpensive determination of every proceeding on its merits.
As stated in Cardinal v Tassone 2013 BCSC 609 at paragraph 42, delay is” inordinate if it is uncontrolled, immoderate or excessive. There is no universal rule as to when the time from which delay is to be measured starts to run. There is no chromatographic tariff to measure delay, and whether there is inordinate delay depends on the facts of the individual case.
See also Kolic v Kolic 2019 BCSC 1827 where despite the Court’s finding that the plaintiff had for years sought to delay matters, to personally benefit and to frustrate the rights of family members., the court declined to dismiss the case for want of prosecution and instead set a peremptory trial date that was scheduled to being in two weeks.